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Biometrics Takes Off—Fight Between Privacy and Aviation Security Wages On Journal of Air Law and Commerce Volume 85 Issue 3 Article 4 2020 Biometrics Takes Off—Fight Between Privacy and Aviation Security Wages On Alexa N. Acquista Southern Methodist University, Dedman School of Law, [email protected] Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Alexa N. Acquista, Biometrics Takes Off—Fight Between Privacy and Aviation Security Wages On, 85 J. AIR L. & COM. 475 (2020) https://scholar.smu.edu/jalc/vol85/iss3/4 This Comment is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. BIOMETRICS TAKES OFF—FIGHT BETWEEN PRIVACY AND AVIATION SECURITY WAGES ON ALEXA N. ACQUISTA* ABSTRACT In the last two decades, the Department of Homeland Secur- ity (DHS) has implemented a variety of new screening and iden- tity verification methods in U.S. airports through its various agencies such as the Transportation Security Administration (TSA) and Customs and Border Protection (CBP). In particular, biometric technology has become a focal point of aviation secur- ity advances. TSA, CBP, and even private companies have started using fingerprint, iris, and facial scans to verify travelers’ identi- ties, not only to enhance security but also to improve the travel experience. This Comment examines how DHS, its agencies, and private companies are using biometric technology for aviation security. It then considers the most common privacy concerns raised by the expanded use of biometric technology: data breaches, func- tion creep, and data sharing. As biometric technology is new and continually developing, the scope and extent of privacy threats cannot be completely quantified. However, a combina- tion of new legislation, technological solutions, and indepen- dent oversight may be an effective way to protect both biometric data and traveler privacy while maintaining the benefits of en- hanced security. TABLE OF CONTENTS I. INTRODUCTION.................................. 476 II. HISTORY .......................................... 478 A. GENERAL HISTORY OF BIOMETRIC TECHNOLOGY . 478 1. How Biometric Systems Work . 479 * J.D. Candidate, SMU Dedman School of Law, 2021; B.A. Politics, University of Dallas, 2018. 475 476 JOURNAL OF AIR LAW AND COMMERCE [85 2. The Government’s Database . 480 B. BIOMETRIC TECHNOLOGY IN AVIATION SECURITY. 481 1. TSA PreCheck ............................... 481 2. Traveler Verification Service . 483 3. Secure Flight................................. 484 4. Arrival and Departure Information System . 484 5. Private Companies . 485 III. CURRENT STATE OF THE LAW . 486 A. LEGAL AUTHORIZATION FOR BIOMETRIC TECHNOLOGY ................................... 486 B. FEDERAL DATA PRIVACY LAWS . 488 1. Privacy Act of 1974 . 489 2. E-Government Act of 2002 . 490 3. Freedom of Information Act . 491 4. Implementing the Recommendations of the 9/11 Commission Act of 2007 . 491 IV. PRIVACY CONCERNS ............................. 492 A. DATA BREACHES ................................ 492 B. FUNCTION CREEP ............................... 495 C. DATA SHARING .................................. 496 V. STRIKING THE SECURITY–PRIVACY BALANCE: POSSIBLE SOLUTIONS . 498 A. EFFICACY OF BIOMETRIC SYSTEMS . 498 B. TECHNOLOGICAL SOLUTIONS . 500 C. LEGISLATIVE SOLUTIONS . 501 D. INDEPENDENT OVERSIGHT . 502 E. NOTICE AND CONSENT . 503 F. LOOKING OUTSIDE BIOMETRICS . 504 VI. CONCLUSION..................................... 505 I. INTRODUCTION IR TRAVEL IS AN increasingly common way to travel. In A2018, the Transportation Security Administration (TSA) screened more than 804 million aviation passengers—a 5% in- crease from the previous year.1 Millions of those Americans have been willing to trade their biometric information for the prom- 1 About Face: Examining the Department of Homeland Security’s Use of Facial Recogni- tion and Other Biometric Technologies: Hearing Before the H. Comm. on Homeland Sec., 116th Cong. 33 (2019) (prepared statement of Austin Gould, Assistant Adminis- trator, Requirements and Capabilities Analysis), https://www.tsa.gov/news/ press/testimony/2019/07/10/use-biometric-technology-department-homeland- security [https://perma.cc/ZUQ6-2UKG] [hereinafter Biometric Technology Hearing]. 2020] BIOMETRICS TAKES OFF 477 ise of shorter airport security lines, safer flights, and a better flying experience.2 However, biometric data collection raises se- rious questions about data security and traveler privacy. Biometrics is the science used to identify or verify an individ- ual’s identity “using physiological or behavioral characteristics.”3 Biometric technology is not limited to government use. Many companies have started integrating biometric technology into their products for both security and convenience.4 The con- sumer industry integrated biometrics into Americans’ everyday lives.5 For example, iPhone users can now unlock their phones with their fingerprint or their face instead of a traditional alpha- numeric password.6 While increased use of biometric security measures can bene- fit airports in a multitude of ways, the rapid expansion of bio- metric technology has raised privacy concerns from both sides of the political aisle.7 Privacy advocates question the govern- ment’s storage and use of biometric data.8 However, privacy and security are not mutually exclusive—Congress and the private sector can strike the proper balance between security and pri- vacy. An effective solution might include federal legislation, im- proved technological protections, increased independent oversight, or more effective opt-out procedures. 2 See Press Release, U.S. Transp. Sec. Admin., TSA PreCheck Reaches Mile- stone With 10 Million Members (Mar. 2, 2020), https://www.tsa.gov/news/ press/releases/2020/03/02/tsa-prechecktm-reaches-milestone-10-million-mem bers [https://perma.cc/N7CU-M27K]. 3 JOHN R. VACCA,BIOMETRIC TECHNOLOGIES AND VERIFICATION SYSTEMS 589 (2007). 4 Nasir Memon, How Biometric Authentication Poses New Challenges to Our Security and Privacy, 34 IEEE SIGNAL PROCESSING MAG., July 11, 2017, at 194, 196, https:// ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=7974880&tag=1 [https:// perma.cc/64M2-CCA2]. 5 Id. at 196. 6 Id.; Samuel Gibbs & Alex Hern, Apple Unveils iPad Air and iPad Mini With Touch ID Fingerprint Scanner,GUARDIAN (Oct. 16, 2014), https://www.theguardian. com/technology/2014/oct/16/apple-unveils-new-powerful-ipad-air-ipad-mini- touch-id-fingerprint-scanner [https://perma.cc/75DA-KWAC]; Sam Rutherford, Touch ID Will Reportedly Return to iPhones in 2021 With Apple’s New In-Screen Finger- print Sensor, GIZMODO (Aug. 5, 2019), https://gizmodo.com/touch-id-will-report- edly-return-to-iphones-in-2021-with-1836973588 [https://perma.cc/NWE5- B9E8]. 7 See, e.g., Letter from Sen. Edward Markey and Sen. Mike Lee to Kevin McAleenan, Acting Sec’y of Homeland Sec. (July 26, 2019), https:// www.markey.senate.gov/imo/media/doc/DHS%20Biometric%20Report.pdf [https://perma.cc/LV3P-PM6K]. 8 Id. 478 JOURNAL OF AIR LAW AND COMMERCE [85 Part II of this Comment will discuss biometrics generally and the Department of Homeland Security’s (DHS) application of biometric technology to aviation security. Part III will summarize the federal laws authorizing the use of biometric technology and the federal data privacy laws limiting these technologies. Part IV will discuss the primary privacy concerns biometric security tech- nology poses, and Part V will analyze solutions that promote se- curity while preserving privacy.9 II. HISTORY A. GENERAL HISTORY OF BIOMETRIC TECHNOLOGY The U.S. government has been collecting Americans’ biomet- ric data since the early 1900s.10 Law enforcement agencies first started biometric collection by manually recording physical characteristics, often called “soft biometrics,”11 “such as hair color, eye color, height and weight.”12 Eventually, law enforce- ment began using fingerprinting to identify criminal suspects.13 The Federal Bureau of Investigation’s (FBI) national fingerprint collection program dates back to 1924,14 and its database con- tains “almost 72 million criminal fingerprints, more than 50 mil- lion civil fingerprints, [and] more than 51 million facial images.”15 Biometric data is now largely automated16 and in- cludes everything from “fingerprints, DNA samples, iris or reti- nal scans, [and] voice recordings, [to] walking gait, typing pattern of the fingers, 3D facial scans, and other forms of hand geometry data.”17 In wide-scale public use applications, the best 9 The possible constitutional implications of biometric technology are outside the scope of this Comment. 10 ELS J. KINDT,PRIVACY AND DATA PROTECTION ISSUES OF BIOMETRIC APPLICA- TIONS: A COMPARATIVE LEGAL ANALYSIS 18 (Pompeu Casanovas & Giovanni Sartor eds., 2013). 11 Id. at 35 & n.75. 12 Haydn Evans, The State of Biometrics Technology: The Uses, the Concerns,LAW360 (Aug. 8, 2017), https://www.law360.com/articles/950365/the-state-of-biometrics -technology-the-uses-the-concerns [https://perma.cc/ZA3T-FQJ2]. 13 Id. 14 Carra Pope, Comment, Biometric Data Collection in an Unprotected World: Ex- ploring the Need For Federal Legislation Protecting Biometric Data, 26 J.L. & POL’Y 769, 774–75 (2018) (citing Fingerprints and Other Biometrics,FED. BUREAU OF INVESTIGA- TION, https://www.fbi.gov/services/cjis/fingerprints-and-otherbiometrics/ [https://perma.cc/FQ45-HMR8]). 15 U.S. DEP’TOF JUSTICE,CRIM. JUSTICE INFO.
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